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Long v. United States

United States Court of Appeals, Seventh Circuit

February 13, 2017

Willie Long, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued November 9, 2016

         Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:15-CV-198 - Robert L. Miller, Jr., Judge.

          Before Bauer and Kanne, Circuit Judges, and Feinerman, District Judge. [*]

          Kanne, Circuit Judge.

         Willie Long pled guilty to being a felon in possession of a firearm. Thereafter, Long sought collateral relief, arguing that his trial attorney provided ineffective assistance of counsel. Unfortunately for Long, his plea agreement contained a provision waiving his right to collaterally attack his conviction and sentence. For that reason, the district court summarily denied his claim.

         On appeal, Long argues that the district court erred in denying his claim without an evidentiary hearing. Long correctly notes that we will allow a petitioner to circumvent a collateral-attack waiver if he can prove that his counsel was ineffective in negotiating the plea agreement containing that waiver. Nevertheless, because Long has failed to allege any facts that, if proven true, would entitle him to relief, he is not entitled to an evidentiary hearing. We affirm.

         I. Background

         According to Long's arrest report, on November 18, 2013, at about 4:20 a.m., a Mishawaka police officer on routine patrol saw several cars maneuvering around a car parked in a McDonald's drive-through lane. The officer notified dispatch of his location and gave a description of the parked car. He then got out of his squad car and approached the car on foot. When he reached the car, he saw Long asleep in the driver's seat. The officer noticed that the car was actually in drive, but Long's foot was on the brake.

         The officer knocked on the car's window. When Long responded, the officer told him to park the car and open the door so they could talk. Long opened the door, and the officer immediately smelled marijuana. As they were discussing the marijuana odor, the officer saw a gun on the floorboard near Long's feet. He then secured Long's hands and told him not to move.

         At that point, another officer arrived at the scene. The officers discovered that Long had a prior felony conviction and thus could not lawfully possess the gun. They arrested Long and impounded his car. An inventory search of the car revealed five gallon-sized bags of marijuana, three bags of ecstasy pills, three cell phones, two digital scales, and ninety-eight small plastic baggies.

         The government charged Long under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. Assistant federal public defender H. Jay Stevens was appointed to represent Long. Long and Stevens allegedly discussed the possibility of filing a motion to suppress the gun evidence. But Stevens never filed that motion because he apparently "didn't see any realistic hope in [Long] winning [it]." (R. 35 at 2.)[1] Two weeks after the filing deadline passed, Long pled guilty to the possession charge.

         In his plea agreement, Long expressly waived his right to appeal or collaterally attack his conviction and sentence. He also affirmed that he had told Stevens the facts and circumstances of his case and that he believed Stevens was fully informed of the relevant matters. During the change-of-plea hearing, Long agreed that, if the case were to proceed to trial, the government would be able to prove that a police officer found Long asleep at the wheel in a McDonald's drive-through lane, and after waking Long, the officer saw a gun on the floorboard, which Long admitted he knew was there. The court accepted Long's plea and set a date for sentencing.

         Nevertheless, Long changed his mind once he discovered that his presentence report ("PSR") recommended a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense-that is, Long's possession of marijuana. This enhancement increased Long's guidelines range from 37-46 months to 57-71 months. At the sentencing hearing, Long claimed that Stevens told him that no such enhancement would factor into his sentence. Thus, Long wished to withdraw his plea. Stevens acknowledged that the two disagreed about how to handle the case. Accordingly, the court rescheduled the sentencing hearing, allowed Stevens to withdraw as counsel, and appointed Michael Rehak as new counsel.

         Soon after, in accordance with Long's wishes, Rehak moved to withdraw Long's plea. Rehak argued that, had Long known of the enhancement, Long would have moved to suppress the gun evidence on the ground that the officers had no probable cause to stop him. The government conceded that there was no probable cause, but argued that there was no Fourth Amendment violation because the officers were performing a caretaking function by checking on Long, whom they had found asleep at the wheel. At a hearing on the motion, Rehak said that he viewed the case the same way that Stevens did and that Rehak had explained to Long that withdrawing the guilty plea and ...

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